NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2008-7037 OLIVER C. GEBHART, Claimant-Appellant,

v. JAMES B. PEAKE, M.D., Secret ary of Veterans Affairs, Respondent-Appellee.

Oliver C. Gebhart , of Oregon, Missouri, pro se. Armando Rodriguez-Feo , Trial Attorney, Commercial Litigation Branch, Civil Division, United States Depar tment of Justice, of Wash ington, DC, for respondentappellee. With him on the brief were Jeffrey S. Bucholtz , Acting Assistant Attorney General, Jeanne E. Davidson , Director, and Martin F. Hockey, Jr. , Assistant Director. Of counsel on the brief were David J. Barrans , Deputy Assistant General Counsel, and Tracey P. Warren , Attorney, Office of the General Counsel, United States Department of Veterans Affairs, of Washington, DC. Appealed from: United States Cour t of Appeals for Veterans Claims Judge Alan G. Lance, Sr.NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2008-7037 OLIVER C. GEBHART, Claimant-Appellant,

v. JAMES B. PEAKE, M.D., Secretar y of Veterans Affairs, Respondent-Appellee. Appeal from the United States Court of Appeals for Ve terans Claims in 07-1764, Judge Alan G. Lance, Sr.

__________________________ DECIDED: August 8, 2008

__________________________ Before MAYER, LOURIE, and PROST, Circuit Judges

. PER CURIAM. Mr. Oliver C. Gebhart appeals the final decision of the United States Court of Appeals for Veterans Claims (“Veterans Cour t”) denying his petition for extraordinary relief in the nature of a writ of mandamus. We dismiss for lack of jurisdiction. BACKGROUND On July 2, 2007, Mr. Gebhart filed a petition for extraor dinary relief in the nature of a writ of mandamus, asking the Veterans Court to order the Secretary to comply with a June 6, 2006 remand order fr om the Board of Veterans’ Appeals (“Board”). On September 27, 2007, the Veter ans Court denied Mr. Gebhart’s pet ition, concluding that mandamus was not warranted under the circumstances, noting that “[t]he Secretary hascomplied with the terms of the Board’ s remand without unreasonable delay, the petitioner has been informed of his appellate rights, and his appeal will be certified to the Board in due course.” On November 14, 2007, the Veter ans Court denied Mr. Gebhart’s motion for reconsideration and ent ered judgment. Mr. Gebhart appeals the judgment of the Veterans Court. DISCUSSION Under 38 U.S.C. § 7292, this court has limited jurisdiction over appeals of Veterans Court decisions. In review of a Ve terans Court decision, this court decides “all relevant questions of law, including interpre ting constitutional and statutory provisions” and sets aside any regulation or interpretati on thereof “other than a determination as to a factual matter” relied upon by the Veterans Cour t that is “(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immuni ty; (C) in excess of st atutory jurisdiction, authority, or limitations, or in violation of a statutory ri ght; or (D) without observance of procedure required by law.” 38 U.S.C. § 7292(d)(1). Exc ept to the ex tent that an appeal of a Veterans Court decision presents a constitutional issue, this court “may not review (A) a challenge to a factual determi nation, or (B) a ch allenge to a law or regulation as applied to the facts of a par ticular case.” 38 U.S.C. § 7292(d)(2). On appeal, Mr. Gebhart does not address t he decision of the Veterans Court denying his petition for mandamus. 1 As previously noted, the Veterans Court explained

1 Similarly, Mr. Gebhart did not address the decision of the Veterans Court in his previous appeal to this court from an order of the Veterans Court denying an earlier petition for mandamus. See Gebhart v. Nicholson , 154 Fed. Appx. 207, 209 (Fed. Cir. 2005) (“Gebhart does not address the decision of the Veterans Court or reference his petition.”).

2008-7037 2its denial of mandamus by stat ing that “[t]he Secr etary has complied with the terms of the Board’s remand without unreasonable delay, the petitioner has been informed of his appellate rights, and his appeal will be certified to the Board in due c ourse.” While we have jurisdiction to review the Veterans Court’s denial of mandamus in some circumstances—including those involving the in terpretation of a regulation or statute,

see Lamb v. Principi , 284 F.3d 1378, 1381 (Fed. Cir. 2002)—we do not have jurisdiction to consider Mr. Gebhart’s appeal of the Veter ans Court decision in this case because any such challenge would involve factual dete rminations and/or the app lication of law to the facts of this case. Mr. Gebhart’s brief on appeal also raises allegations unrelated to the Veterans Court’s decision denying mandamus, includi ng an argument regard ing the denial of Reserve Officers’ Training Corps (“ROTC”) credi ts at Washington University. While Mr. Gebhart’s arguments on this point are far from clear, he appears to argue that the denial of ROTC credits violated, inter alia, equal protection rights and t he Civil Rights Act of 1964. We note that the Ve terans Court decision, however, did not decide any constitutional issues. Additionally, we not e that Mr. Gebhart’s characterization of a question as constitutional in nature does not confer upon us jurisdiction that we otherwise lack. See Helfer v. West , 174 F.3d 1332, 1335 (Fed. Cir. 1999) (explaining that an appellant’s characteri zation of a question as constitutional in nature does not confer upon us jurisdiction t hat we otherwise lack). In these circumstances, we conclude that Mr. Gebhart’s undeveloped referenc es on appeal to the Constitution are insufficient to provide a basis for this court’s jurisdiction.

2008-7037 32008-7037 4 CONCLUSION Based on the foregoing analysis, we mu st dismiss this appeal for lack of jurisdiction. COSTS Each side shall bear its own costs.